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The Constitutional Text and Judicially Created Doctrines

I would like to thank Professor McNeal for his bold and stimulating response to my essay. I am glad that he agrees that a traitor may only be executed after conviction in an Article III court, and I reassure him that my argument is not as restrictive as the maximalist reading that he presents. To explain, I should set forth the established definition of a bill of attainder.

An attainder is not the act of killing a citizen; this act is an order from a nonjudicial branch of the government authorizing that action, whether or not it is carried out. This is how Josiah Phillips was deprived of his rights. The fatal wounding of someone pointing an RPG at the White House would not implicate the Attainder Clause’s protections, and accordingly its legality would need to be determined by reference to common-law principles. All killings, other than those of individuals specifically targeted by legislation or executive act, fall outside of the Clause’s scope—including the shooting of someone in self-defense. That said, the burden of proving that a defense to homicide exists will rest on the aggressor; they might be called upon to establish the existence of circumstances that excuse them for having deprived someone of their right to life.

The Framers considered a bill of attainder an unmitigated evil in part because it authorizes the killing of a citizen under any circumstances, and serves as an a priori defense to any claim that a citizen was unlawfully killed. Whether the person attainted is attempting to surrender, demanding a chance to prove his innocence, or simply sleeping in his own bed, he may be killed. On my understanding of McNeal’s reading of the political question doctrine, the shooting of a nonthreatening, factually innocent person pursuant to a targeted killing order could never be challenged in any court. Does this really seem compatible with the rule of law and our Constitution? And if the courts do not have jurisdiction to consider the legality of an executive act that would deprive a citizen of life without due process, then what good are they?

That the Framers had this view of attainder is beyond cavil. While my lead essay’s quotations from future Chief Justice Marshall and Attorney General Randolph were exemplary, leading historian Leonard Levy also noted that “[t]hese remarks demonstrate the profound repugnance with which a bill of attainder was regarded by fair-minded men,” a group in which I would include all the Founding Fathers. The American patriots had also been made acutely aware of these evils by the attainting of the British “symbol of liberty” John Wilkes, which also contributed to their negative assessment (as did the fact that the Framers themselves were under threat of being attainted by Parliament for treason). Furthermore, given my earlier reference to the fact that the Clause was passed unanimously—in fact nemine contradicente—I rather think that the burden of the opposing claim rests on McNeal. Since it appears that he has no argument to the contrary, and merely questions the relevance of my historical evidence with his doubts, the rules of rational argument indicate that he must tentatively accept my assertions about the Founding Fathers’ views of attainder.

I must admit that I am rather puzzled by McNeal’s assertion that Hobbes was an influence on the judgments of the Framers, unless this is merely an uncontroversial reference to his theory of the social contract as radically reformulated by Locke and Montesquieu. Hobbes was an avowed monarchist who believed that Leviathan’s subjects must surrender their rights to an all-powerful sovereign—who cannot be bound to respect these rights in any way—so his core views were largely antithetical to the Framers’. His influence was largely negative: the thinkers that they respected the most had rejected these emphatically (see e.g., the section of my forthcoming article that discusses Sir Matthew Hale).

However, this assertion makes some sense when we consider the Hobbesian nature of President Jefferson’s justifications for trumping the Constitution with the doctrine of necessity. In the same letter of President Jefferson to John Colvin quoted by McNeal, Jefferson also stated that the “law of necessity and self-preservation … [renders] the salus populi supreme over the written law.” Speaking even more frankly in other letters, he argued for the necessity in “extreme cases” of resorting to “a dictator,” something he described as a “universal resource.” His views as president—which were diametrically opposed to those found in his Notes on the State of Virginia of 1781—are not those of the Founding Fathers at the time of the framing. Rather, they are proof of their collective conclusion that since power corrupts, only the stout strands of a written constitution could tie even a good man to the mast of the rule of law while its siren song plays. As James Elliot replied to Jefferson:

[W]e are told that the salus populi may have required and may require the lex suprema of military despotism. This doctrine is unknown to the Constitution. That sacred record of our rights proclaims itself and itself alone … the supreme law of the land. It acknowledges no superior. It contemplates no case in which the law of arms can erect a throne on its ruins.

My familiarity with the pamphlet literature of the American Revolution leads me to believe that this response reflects the Framers’ views much better than President Jefferson’s letters.

I often feel that if we acquainted ourselves with the Framers’ motivations and ideals, there would be far fewer examples of the fallacy of wishful thinking in modern legal scholarship. Namely, arguments such as “the Founding Fathers couldn’t have believed there were no exceptions to constitutional right X, because that would mean Y, and Y does not appear to be a pragmatic approach.” Every variation on this theme is as fallacious as “it cannot rain tomorrow, because we’ll be picnicking and that would ruin everything.” The Framers had uncompromising ideas about liberty, rights, and limited government; they bound us to constitutional principles that McNeal might find burdensome. I mentioned a potential debate discussing these principles in my lead essay because I believe that it is the proponents of targeted killing of citizens who would need to create popular support for a constitutional amendment that would allow for this action, should they so choose, because the Framers’ Constitution does not allow it.

I find it remarkable that McNeal would point to the federal protective power (a judicially created doctrine which has been invoked to allow a marshal the right of self-defense on behalf of a Justice and to allow the National Guard to restore order during riots) as a trump card over the clear wording of unambiguous clauses of the Constitution that protect us against nonjudicial death warrants. If that doctrine establishes that salus populi is supreme and the executive branch is the sole judge of the necessity of overriding our Constitution, then I would fear for the republic. Fortunately, I cannot imagine it ever being extended that far.

Finally, I believe that any conclusion that the Constitution is too challenging for us to interpret would be a serious renunciation of our scholarly vocation. If the Constitution has no determinable meaning (or one that only the president can discern), then we do not live in a nation of laws. It is our ever-present duty to uncover and publicize its meaning, rather than to shrug and to be glad of the fact that some purported complexity (that we might have created ourselves with inartful analysis) disposes of all limitations on arbitrary government. Fortunately, by means of this debate we are helping to establish that the meanings of the Bill of Attainder and Treason Clauses are clear and unambiguous, and that the order targeting al-Awlaki violates both.

Also from This Issue

In one sense, “targeted killing” is what war is all about. But can the executive branch rightfully declare a U.S. citizen the target of an assassination order? Lead essayist Ryan Alford argues that the “presidential death warrant” is repugnant to the rule of law—so much so that the Founders didn’t even think it necessary to make an explicit statement about the practice. At the time of the Revolution, English kings hadn’t enjoyed such a power for centuries, and it was thought to be the very antithesis of the rule of law. A power of this magnitude cannot be simply inferred from the Constitution’s silence, particularly when legal practice in the Anglo-American world tells so strongly against it.

John C. Dehn argues that context is critical in Anwar al-Awlaki’s case. He cites the Prize Cases, concerning a set of property seizures during the Civil War, and related Supreme Court precedent to argue that citizens with “enemy” status in an armed conflict require no prior adjudication of guilt before being made the object of war measures, but only if any such measures are consistent with the laws of war. Nonetheless, this does not amount to an unlimited power to issue executive death warrants; the courts may rule on the existence of a conflict or its proper scope, and are even constitutionally compelled to determine whether citizens were properly targeted within it. The courts should not avoid these issues under the “political question” doctrine.

Gregory McNeal argues for another source of executive power that may legitimize the targeted killing of Anwar al-Awlaki, namely the federal protective power. Even outside of wartime, longstanding precedent allows federal agents to protect the interests and liberties of the citizens, as well as federal property and public servants. One need not convict al-Awlaki of treason to understand that he poses a threat in this sense, and doing so does not render the Treason Clause otiose; treason trials may still proceed and are not suppressed in any way. He further argues that issues such as this one, requiring “an informed debate [on their] benefits and dangers,” are obviously political questions — therefore properly out of reach of the courts.

Carlton Larson finds that a kill order issued in a military operation is not designed to punish, as the penal system obviously is. Instead, it aims to prevent future attacks and is logically implicit in war itself. If al-Awlaki were captured alive, or if he were to turn himself in, the Treason Clause would then govern the case. It does not necessarily do so now. Although Larson declares that he has difficulty siding decisively with any position on the case, he notes that it is “formalistic in the extreme” to conclude that all that separates lawful warfare from unlawful bills of attainder is a naming of names.

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